1992 PLP 70 (PLC)

SYED ABDUR REHMAN, J: --This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan.

2. The petitioner is an employee of Investment Corporation of Pakistan, respondent No.3. He was dismissed from service on 8-11-1985 upon the allegations of misconduct, in relation to a lady visitor. After serving a grievance notice and complying with the requirements of law, the petitioner assailed his dismissal before the Labour Court, respondent No.2. The Labour Court set aside the dismissal order and ordered his re-instatement--with full back benefits. Respondent No.3 filed an appeal against the said order before the Labour Appellate Tribunal, respondent No.l. The Appellate Tribunal upheld the re-instatement, but did not allow the back benefits: It did not give any reasons for disallowing the back benefits. This, according to the petitioner, was illegal and of no lawful effect. Hence this petition praying for the restoration of back benefits.

3. We have heard Mr. Rasheed A. Rizvi, Advocate for the petitioner and Mr. I.H. Zaidi, Advocate for respondent No.3.

4. The contention of Mr. Rasheed A. Rizvi, learned counsel for the petitioner was that after having held that the petitioner's dismissal from service by respondent No.3 was wrongful and after having re-instated the petitioner, the learned Appellate Tribunal could not have deprived him of the back benefits. In support of his contention he has referred to PLD 1970 SC 415 (General Manager, P.W.R., Lahore v. Mrs. A.v. Issacs). In this case Railway had appealed to the Supreme Court against the judgment and decree allowing the arrears of salary from the date of dismissal till the re-instatement on the ground that the dismissal was wrongful. The Hon'ble Supreme Court, while dismissing the appeal observed as follows:-- "The next question that arises is as to what is to happen in cases where a person is dismissed from service but subsequently the dismissal is held to be unlawful. Should a Government servant be entitled to recover his pay for the period he was kept out of service? It seems to me that if the dismissal was wrongful then it was due to no fault of the servant that he was prevented from serving the State. If he is to be treated by virtue of the declaration, given by the Court as being still in service, then I see no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service. This is the basis on which arrears of pay were allowed to Suraj Narain Anand by the Federal Court. If during this period he has accepted other employment or is engaged in other profitable business, then any amount earned by way of salary from such employment or as profits of such business would, of course, have to be set off against the salary due for two reasons: Firstly, because a Government servant cannot without the permission of Government serve any other master or engage in any other business and secondly, because on general principles too, a person cannot be allowed to reap a double advantage." He also relied upon the case of Niaz Ali v. Punjab Urban Transport Authority, Lahore and others, reported in PLD 1983 Lah.

661. In this case it was held that once the termination of the service was found to be wrong and was, therefore, set aside, it followed as a natural corollary that the arrears of salary or incidental back benefits should be restored. Lahore High Court allowed the petition and ordered back benefits to be restored to the petitioner, which were denied by the Appellate Tribunal. Reference was also made to 1983 PLC 721 (Textile Corporation of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and another), where it was held by a Division Bench of this Court that "back benefits could not be denied on the ground that section 36-B (iv) of l*he Industrial Relations Ordinance was repealed". Latest Division Bench's decision of this Court reported in 1990 PLC 757 in the case of Gul Hassan v. Divisional Superintendent, Railways and 4 others, was also cited, where, relying upon the authorities referred to above as well as the Division Bench's decision of this Court in Syed Asghar Imam v. Sindh Labour Appellate Tribunal and 2 others, reported in 1990 PLC 346, it was held that "where the removal of a workman has been .found to be in violation of mandatory provisions of law, their refu.Sal to grant him back benefits was against the principles of law as laid down by superior Courts." He also relied upon an unreported decision of this Court in Constitutional Petition No.D-843 of 1983 (Muhammad Shahid v. Sindh Lab% Appellate Tribunal, Karachi and another) and Constitutional Petition No. p. 664 of 1984 (National Bank of Pakistan v. Sindh Labour Appellate Tribunal Karachi and another). In the former case the dismissal order of the petitioner, was set aside and he was ordered to be re-instated in service, as it was found that he remained under treatment for the period for which he applied for leave and the Medical Certificate produced by him remained un-controverted. The Tribunal, however, refused to grant him back benefits on the ground that the petitioner had not come to the bank to present the leave application, although he could go to see the Doctor. It was held by the Division Bench that this fact had no nexus with the grounds on which back benefits could be declined, Hence it was observed as under:-- "It is true that in a particular case the learned Labour Court or the learned Labour Appellate Tribunal may decline back benefits to a workman, but the ground on which back benefits can be declined should have nexus with the earning of the workman in question during the period involved. In the instant case if respondent No.2 would have brought on record evidence to show that during certain period the petitioner had earned wages the learned Labour Court or the Sindh Labour Tribunal could have declined the total back benefits or portion whereof keeping in view the quantum of amount earned by petitioner. However, in the case the ground on which the learned Sindh Labour Appellate Tribunal has modified the order of the learned Labour Court as to the back benefits is not relevant for the purpose of deciding the question whether the petitioner was entitled back benefits or not."

5. In the latter case the petitioner had filed constitutional petition' challenging the order of Labour Appellate Tribunal granting full back benefit' to respondent No.2 on the ground that the appellant bank had not shown that the respondent was not jobless during that period. The burden in such case lay upon the employer. The Division Bench, therefore, upheld the order of the Tribunal granting back benefits.

6. As against this the respondent's counsel has contended that a workman is entitled to back benefits but as a matter of course, if the dismissal order passed against him is set aside and he is re-instated. There are, however, certain circumstances in which even if the dismissal order is set aside and the petitioner is re-instated, then also the back benefits can be denied to him. In this connection he relied upon PLD 1990 SC 787 (Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another). In this case the petitioner was dismissed on the charge of being involved in large scale strikes resulting in disturbances. The dismissal order was set aside by the Labour Court, but the decision on the question of back benefits was deferred. It was held by the Hon'ble Supreme Court after taking into consideration the various decisions on the point as under:-- "

12. As regards the question of entitlement to back benefits, the established proposition is that where the order of dismissal or removal has been set aside unconditionally, found to be without jurisdiction and uncalled for, necessarily the back benefits have to be paid. It has to be paid under the authority of the Tribunal or person setting aside the order of dismissal and if no such order is passed, then under the orders of the competent authority in the matter. Where full relief is not granted, the proper course in the absence of express order to that effect is to seek appropriate redress either under the Industrial 9d f _~ Relations Ordinance or under the Civil Servants Act, as the case may be. Where, however, the order of reinstatement is conditional, as was in the case of the appellant, that an enquiry could still be made into his conduct and his conduct was considered such as to call for a departmental enquiry, then the entitlement with regard to back benefits had necessarily to wait till the final determination with regard to his conduct. If he was found at fault then the competent authority could justifiably deny him part of the back benefits. Mere setting aside of the order of dismissal, irrespective of whether it is set aside of the order of dismissal, irrespective of whether it is set aside conditionally or unconditionally, would not, as claimed by the appellant, entitle the affected functionary to claim arrears of pay and back benefits. Similarly the continuance of the enquiry on the same charges would also disentitle him, till the conclusion of the enquiry and the determination of the responsibility, to back benefits."

7. He then relied upon 1982 PLC 365 (Mehmood Shah v. Dawood Cotton Mill. Ltd. and others), where tile dismissal of the petitioner was set aside by the Labour Court and he was re-instated with full back benefits. The Labour Appellate Tribunal allowed the appeal and ordered fresh enquiry and made the order of back benefits dependent upon the result of the enquiry. The above order was challenged in this Court, which upheld the order of the Tribunal.

8. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties and the decisions referred to above. We are of the clear view that ordinarily where the order of dismissal or removal is set aside unconditionally and is held to be without jurisdiction and of no effect, then the back benefits should not be denied to the petitioner, but in a case where (1) the order of re-instatement is conditional, i.e. an enquiry was still to be made into his conduct departmentally, then his entitlement to back benefits could be deferred till the decision of such enquiry, and (2) where it was established by the employer that the petitioner was employed elsewhere during that period, then his back benefits or a part thereof could be withheld. In the present case the dismissal order was set aside by the Labour Court and full back benefits were allowed. The Labour Appellate Tribunal maintained the order of the Labour Court so far as the setting aside of the dismissal order and reinstatement of the petitioner was concerned. It, however, denied back benefits to the petitioner, but without giving any reasons. Admittedly neither any further enquiry was ordered to be conducted departmentally into the conduct of the petitioner, nor was it established or even alleged that the petitioner was employed elsewhere during that period. Hence the learned Labour Appellate Tribunal could not, under the law, deny back benefits to the petitioner. We therefore, allow the petition and declare that the order of respondent No.l modifying the order of respondent No.2 to the extent of back benefits, is without lawful authority and of no legal effect and therefore, direct the restoration of back benefits to the petitioner. H.B.T./M-1503/K Petition allowed.